The fourth respondent was employed by the applicant as
a bus driver. He was dismissed after having been found guilty of
gross misconduct
at a disciplinary hearing by reason of the fact
that in breach of the applicant’s rules he failed to issue tickets
to passengers
when they boarded the applicant’s bus. The fourth
respondent referred a dispute to the Transnet bargaining council
(the first
respondent) alleging that his dismissal was substantively
unfair. When conciliation was unsuccessful the dispute was referred
to the second respondent (the arbitrator) for arbitration. He found
that the sanction of dismissal was unfair and ordered the applicant
to reinstate the fourth respondent from the date of the award with a
final warning valid for six months.

The applicant seeks to have the award set aside and
substituted with an order that the fourth respondent’s dismissal
was substantively
fair. The application is opposed by the third and
fourth respondents (the respondents). The fourth respondent has
also applied
in terms of section 158(1)(c) of the Labour Relations
Act 66 of 1995 (the Act) to have the arbitrator’s award made an
order of
this Court. This application is opposed by the applicant
simply on the basis of the pending review application. According,
should
the review application fail then the applicant does not
oppose the award being made an order of court. By agreement between
the
parties and with the leave of the Court the two applications
were heard together. I intend to first deal with the review
application
(the application) because the outcome thereof will also
determine the future of the section 158(1)(c) application.

In their opposing affidavit under the heading “Point
in limine” the respondents raised the following
objection to the application:

“4.1 I
have read the founding affidavit of Moshe Moses Modiba in this matter
and I will respond to it hereunder. However, I am advised
that the
applicant has not prosecuted this review application with the degree
of diligence required and that it should be dismissed
on this basis
alone.

The award in this matter was handed down on 26 September 2001.
The review application was launched on 7 November
2001 but
the rule 7A(8) notice was only delivered on 3 November 2004. I am
advised that this delay is so excessive that the
applicant is
required to apply for condonation. It has failed to do so.”

The applicant dealt with these allegations in its
replying affidavit and also subsequently filed an application
seeking condonation
for “the late filing of applicant’s
notice in terms of Rule 7A(8)(b) …” of the
rules of this Court. Counsel for the applicant, Mr Wesley,
submitted that the applicant has understood the respondent’s
complaint to be that the applicant did not comply with the time
period laid down in the aforesaid rule. This rule specifies that
once the registrar has made the record of the arbitration
proceedings available to an applicant in review proceedings, the
said
applicant must within ten days either deliver a notice standing
by its founding affidavit or an affidavit supplementing the founding
affidavit. The reason for the applicant having understood this to
be the position is, according to Mr Wesley, the fact that the
respondents alleged in their answering affidavit that the applicant
was required to apply for condonation and the applicant can
only be
required to apply for condonation in respect of a failure to comply
with a rule of this Court or a provision of the Act.

On behalf of the respondents Mr Orr submitted that
it is clear from the papers that the real issue before the court is
whether
the applicant has acted diligently and with due expedition
in prosecuting its review application. He submitted that the delay
in the present matter is so excessive that the applicant was
required to apply for condonation for that delay. Mr Wesley’s
answer thereto was that whilst it is correct that the court has an
inherent power to order that an application be dismissed for
want of
prosecution, this is not the order the respondents sought from this
Court in their papers. Instead they have averred that
the applicant
is required to apply for condonation and this is not a correct
statement in law.

What is in my view clear from the respondents’
affidavits filed in both the review and the condonation
applications, is that what
was intended to be placed in issue was
the failure of the applicant to proceed with the application within
a reasonable time and
not its failure to comply with the rules of
court. I fail to see how there could have been any
misunderstanding. I do not find
any merit in the submission that
the respondents are not entitled to rely on this ground for the
dismissal of the application simply
because it may have been
incorrectly stated, as a matter of law, that the applicant was
required to apply for condonation. Assuming
it to be a misstatement
of the legal position, the real question is rather whether the
applicant was in any way prejudiced in dealing
with this issue.
This question must in my view be answered in the negative. As will
become more clear hereunder when I address
the question whether the
delay in the prosecution of the application is excusable, the
applicant fully and adequately dealt with
this issue in its
application for condonation.

There is nothing in the Act or in rules of this Court
that provides that legal proceedings once instituted becomes
superannuated
by the effluxion of time for want of prosecution or
that a litigant must apply for condonation on account of a delay in
the prosecution
thereof. That is also the position in the High
Court. There is also no general time limit under the common law
within which legal
proceedings must be concluded once instituted
(Kuhn v Kerbeland Another1957 (3) SA 525 (A) at
534F.) It has however been held that the High Court has an inherent
discretion to dismiss proceedings by way of action
where there has
been an undue delay in the prosecution of the case. (Herbstein and
Van Winsen The Civil Practice of the Supreme Court of South
Africa 4th ed at page 547). This discretion quite
clearly arises from that court’s inherent power to prevent an
abuse of its process.

I agree with Mr Wesley that no reason exists why the
Labour Court does not have a similar power. In terms of section
151(2) of
the Act this Court is a Superior Court that “…has
authority, inherent powers and standing, in relation to matters
under its jurisdiction equal to that which a court of a provincial
division of the [High Court] has in relation to matters under its
jurisdiction.” This Court, like the High Court,
therefore has the power to protect and control its own proceedings
and to grant orders which
would further the administration of
justice, including an order dismissing proceedings already
instituted on account of a delay
or want of prosecution amounting to
an abuse of the court’s process.

Accepting this to be the position, the question then is
under what circumstances the court will exercise such power. Mr
Wesley
suggested that this Court should adopt an approach similar to
that in the High Court and referred to a number of reported
decisions.
In Molala v Minister of Law and Order and Another1993 (1) SA 673 (W) the court discussed various earlier decisions
and held that the fact that a plaintiff in an action had permitted
an unreasonable
time to elapse before taking the next procedural
step, was not in itself conclusive. Nor was it conclusive that such
delay had
caused prejudice to the defendant. The question was
rather whether there was behaviour which overstepped the threshold
of legitimacy.
Consideration of the prejudice caused by the delay
both to the defendant and to the administration of justice persuaded
the court
to dismiss the action.

In Gopaul v Subbamah2002 (6) SA 551 (D) the approach adopted was one where the court
would weigh up the period of the delay and the reasons therefor, on
the one hand,
and the prejudice, if any, caused to the defendant, on
the other. In Sanford v Haley NO2004 (3) SA 296 (C) a similar approach was adopted. The court
held that the “...prerequisites for the exercise of such
discretion are, first, that there should be a delay in the
prosecution of the action;
secondly, that the delay is inexcusable
and, thirdly, that the [defendant] is seriously prejudiced by such
delay.” It was further held that the court will
exercise its power to dismiss an action or account of a delay or
want of prosecution
only in exceptional circumstances because the
dismissal of an action seriously impacts on the constitutional and
common-law right
of a plaintiff to have the dispute adjudicated in a
court of law by means of a fair trial. (See also Kuiper
and Others v Benson1984 (1) SA 474 (W) at
477A and Western Assurance Co v Caldwell’s
Trustee1918 AD 262 at 271 and 273.)

What the aforementioned decisions have in common is
that they all deal with proceedings commenced by way of action. I
am of the
view that it will not be desirable to without more
transplant to review proceedings the same test or prerequisites that
are used
for the exercise of the court’s discretion to dismiss an
action for want of prosecution. The reason therefor lies in the
fundamental
difference between action and review proceedings. Of
necessity different considerations will apply in assessing issues
such as
whether there as has been an unreasonable delay and whether
it has caused any prejudice. For instance, otherwise than in action
proceedings, where the focus is predominantly on the likelihood of
prejudice at the trial, prejudice in review proceedings is not
limited to actual prejudice to the respondent but also includes the
inherent potential for prejudice to the efficient functioning
of the
public body concerned and to those who rely upon its decisions. As
pointed out by Miller JA in Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 4E F:

Proceedings for judicial review therefore also have a
public interest element in the finality of administrative decisions
and the
exercise of administrative functions. (See further Gqwetha
v Transkei Development Corporation Ltd and Others 2006 (2) SA 603
(SCA) at 612E-I.)

I agree with Mr Orr that it may be of more assistance
to consider the approach of the High Court to the question of delay
in instituting
proceedings for review at common law. This was dealt
with as follows by Brand JA in Associated Institutions Pension
Fund and Others v Van Zyl and Others2005 (2) SA 302 (SCA) at
321B:

“It is a longstanding rule that courts have the power, as part
of their inherent jurisdiction to regulate their own proceedings, to
refuse a review application if the aggrieved party had been guilty of
unreasonable delay in initiating the proceedings. The effect
is that,
in a sense, delay would 'validate' the invalid administrative action
(see eg Oudekraal Estates(Pty) Ltd v
City of Cape Town and Others2004 (6) SA 222 (SCA) ([2004]
3 All SA 1) at para [27]). The raison d'être of the rule is
said to be twofold. First, the failure to bring a
review within a
reasonable time may cause prejudice to the respondent. Secondly,
there is a public interest element in the finality
of administrative
decisions and the exercise of administrative functions (see eg
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van
Kaapstad1978 (1) SA 13 (A) at 41).

[47] The scope and content of the rule has been the subject of
investigation in two decisions of this Court. They are the
Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v
Voorsitter, Nasionale Vervoerkommissie, en 'n Ander1986 (2) SA
57 (A). As appears from these two cases and the numerous decisions in
which they have been followed, application of the rule requires
consideration of two questions:

(a) Was there an unreasonable delay?

(b) If so, should the delay in all the circumstances be condoned?

(See Wolgroeiers at 39C - D.)

[48] The reasonableness or unreasonableness of a delay is entirely
dependent on the facts and circumstances of any particular case
(see
eg Setsokosane at 86G). The investigation into the
reasonableness of the delay has nothing to do with the Court's
discretion. It is an investigation
into the facts of the matter in
order to determine whether, in all the circumstances of that case,
the delay was reasonable. Though
this question does imply a value
judgment it is not to be equated with the judicial discretion
involved in the next question, if
it arises, namely, whether a delay
which has been found to be unreasonable, should be condoned (see
Setsokosane at 86E - F).”

It must be recognised that the present matter differs
from the aforementioned case in that the delay here occurred after
the application
for review was launched and not before. Further, as
correctly pointed out by Mr Wesley, the rule that the court has the
power
to refuse an application for review because of an undue delay
in initiating the proceedings, has been held to be procedural and
part of the court’s inherent power to regulate its own proceedings
where the rules of court do not govern the particular situation.
(See Wolgroeiers (supra) at 41H and Kruger & another v
MacGregor NO & another [1999] 9 BLLR 935 (LC) at G-J.)

By contrast, the rule that the court has the power to
dismiss proceedings due to a delay in the prosecution thereof lies
in the
court’s inherent power to prevent an abuse of its own
process. Despite these differences, the reasoning underlying the
principle
that a delay may be fatal to a review application must in
my view equally apply to both an applicant who delays in initiating
review
proceedings and one who thereafter delays in the finalisation
of the matter. Except for the fact that the court should possibly
also have regard to the respondent’s own conduct in the exercise
of its discretion, the same considerations are relevant and
should
find application in the exercise of the court’s discretion. (See
Mkhwanazi v Minister of Agriculture and Forestry, Kwazulu1990 (4) SA 763 (D) at 766F-H.) In any event, the approach adopted
in the Gopaul and Sanford cases (supra) is not
radically different from the suggested approach in the present
matter. For example, the enquiry is similarly whether there
has
been an undue delay, and if so, whether the delay is excusable. The
differences that do exist rather pertain to the factors
to be taken
into account in deciding the second enquiry.

Turning then firstly to the question whether there has
been undue delay, it is not desirable, and even impossible, to
attempt to
lay down what an unreasonable delay is. As stated in the
Associated Institutions Pension Fund case (supra),
what is or what is not an unreasonable delay needs to be determined
by the facts and circumstances of each particular case.
Although
these would vary from case to case, it should not be difficult to
recognise an unreasonable delay when it occurs. As
stated, the
applicant dealt with the issue of the delay in its prosecution of
the review proceedings in the application for condonation
for the
late delivery of its notice in terms of rule 7A(8)(b). A perusal of
that application reveals the following:

The arbitration award was handed down by the second
respondent on 26 September 2001;

The review application was filed and served on 7
November 2001. At that stage the applicant was represented by a
Mr Molatudi,
a former employee of the applicant’s attorneys
of record.

When the second respondent failed to file the record
of the arbitration proceedings within the prescribed time period
the applicant
applied on 29 November 2001 for an order compelling
the production of the record;

Nearly nine months later and on 13 August 2001 this
application was heard and the second respondent was ordered to
provide the
registrar of this Court with the record of proceedings
within ten days of the receipt of the said order;

On 16 September 2002 the applicant’s attorneys
addressed a letter to the second respondent. At that stage the
matter had been
assigned to a Mr Malan. In the said letter the
said attorney inquired about the failure of the second respondent
to file the
record of proceedings within the time limit set in a
said court order;

There was no response to this letter and nearly ten
months passed without the applicant or its attorneys taking any
further steps.
On 2 July 2003 a new attorney, a Mr van Rensburg
took the matter over. On 4 July 2003 he wrote a letter to the
second respondent
apparently also inquiring about the record of
proceedings. On 9 July 2003 the second respondent responded by
saying that it
was not in possession of any of the recordings;

The applicant’s attorneys did not attempt to
reconstruct the record of proceedings or to take any further step
until the applicant
itself wrote a letter to its attorneys on 26
December 2003 inquiring about the status of the review application;

The file was then handed to a Ms Ramjettan. During
January 2004 a supplementary affidavit was prepared by the
applicant’s attorneys
and forwarded to the applicant for
signature. In this affidavit it was stated that it was not
possible to reconstruct the record
of proceedings and that the
award should be set aside because the arbitrator failed to
mechanically record the arbitration proceedings;

This application was not deposed to apparently because
the employee who had to depose to the affidavit left the
applicant’s
employment on a disclosed date. As a result the
affidavit was never filed of record;

Nothing happened until April 2004 when an attorney
acting on behalf of the fourth respondent addressed a letter to the
applicant’s
attorneys inquiring whether the applicant was still
interested in pursuing the matter and requesting that the papers be
indexed
and paginated with a view of obtaining a date for the
hearing thereof. In spite there being a reference number on the
said letter
corresponding with previous correspondence emanating
from the office of the applicant’s attorneys, this letter was not
responded
to;

On 24 September 2004 the third and fourth respondents
instituted an application to have the award made an order of court;

Instructions were then taken from the applicant and an
answering affidavit was filed to the aforementioned application;

Mr Coster, an attorney in the office of the
applicant’s attorneys of record then took steps to obtain the
court file in the
office of the registrar. On 2 November 2004 the
file was found and on examining the said file it was then
discovered that the
first respondent had in fact filed the record
of proceedings and that this was done on 2 October 2002, two years
earlier;

On 4 November 2004 the applicant then served a notice
in terms of rule 7A(8)(b) on the respondent’s attorneys.

The actions, or rather inaction of the applicant and
its appointed attorneys can be summarised as follows:

It took the applicant nine months to set down an
unopposed application to compel the second respondent to file the
record of proceedings;

During the period 27 August 2002 to July 2003, a
period of more than ten months, one letter was written to the
second respondent
inquiring about the record of proceedings;

For the period 2 July 2003 to 15 January 2004, a
period of more than six months, one further letter was written to
the second
respondent and an unsigned affidavit was drafted and
forwarded to the applicant;

For the period 15 January 2004 to September 2004, a
period of almost eight months nothing further was done.

The first attempt that was made to peruse the contents
of the court file was sometime in October 2004, more than two years
after
an order was granted compelling the second respondent to file
the record of proceedings;

From the time that the application for review was
instituted until its attorneys wrote a letter 28 August 2003, the
applicant
inquired once about the status of the case.

In addition to the conduct of the litigants, a material
fact to be taken into account in making a value judgment as
envisaged by
the inquiry as to whether or not there has been an
unreasonable delay, is the nature of the challenged decision. The
reason for
this is that not all decisions have the same potential
for prejudice to result from their being set aside. (See Gqwetha
(supra) at 613B-C.) As stated earlier, the challenged decision
in the present matter was a decision to dismiss the fourth
respondent
for failing to comply with the applicant’s rules
relating to the issuing of tickets to passengers when they boarded a
bus. The
nature of this decision is such that it has potential for
prejudice if it were to be set aside on review after the lapse of
any
considerable time. As stated by Nugent JA in Gqwetha (supra)
at 613D-E;

“A
decision of that kind will necessarily have immediate consequences
for the ordinary administration of the organisation, and for
other
employees who will be called upon to perform the functions of the
dismissed employee or even to replace her. Moreover, personnel
decisions that are susceptible to review are no doubt made by any
large organisation on a regular and ongoing basis, and some measure
of prompt certainty as to their validity is required.”

The importance of the nature of the challenged decision
was recognised by the Labour Appeal Court in Queenstown Fuel
Distributors CC v Labuschagne NO and Others (2000) 21 ILJ 166
(LAC) where the said court, in dealing with condonation of the late
filing of a review application, stated at
174E-F that:

“…condonation
in a case of disputes over individual dismissals will not readily be
granted. The excuse for non-compliance would have
to be compelling,
a case for attacking a defect in the proceedings would have to be
cogent and a defect would have to be of a kind
which would result in
a miscarriage of justice if it were allowed to stand.”

The delay of over twenty six months from the date on
which the second respondent was ordered to file the record of
proceedings to
the date of service on the respondent’s attorneys
of the notice in terms of rule 7A(8)(b) is clearly unreasonable.
The delay
is of a kind which runs contrary to the purpose of the
Act, namely to effect expeditious dispute resolution.

The remaining question is then whether this Court, in
exercise of its discretion, should condone the delay. Relevant
factors to
be considered in this regard are the following:

The applicant’s explanation for the delay;

The incidence of prejudice to the parties;

Whether there are prospects of the applicant
succeeding in the review application;

The prospect (or lack) of a meaningful consequence of
the setting aside of the award.

(See Gqwetha (supra) at 614J - 615F.) The list
is not intended to be exhaustive. Because it involves the exercise
of a judicial discretion,
which is undesirable to circumscribe, these
factors are inter-related and not individually decisive. Much will
depend on a balancing
of all the relevant considerations and the
weight that is to be given to any of them will depend on the facts
and circumstances of
each case. (See Oudekraal Estates (Pty) Ltd
v City of Cape Town and Others2004 (6) SA 222 (SCA).) However,
if there are no prospects of success, the granting of condonation
would for obvious reasons be without purpose.

In the present matter the delay that has occurred since
the proceedings were instituted is inordinately long and of such a
nature
that in the absence of an acceptable explanation, or for
other convincing reasons, it should not be condoned. The applicant
has
in my view failed to advance adequate reasons for overlooking
its default. The fact that the applicant’s case was from time to
time entrusted to a different attorney within the same firm and that
there had as a result not been any continuity, cannot assist
the
applicant. It is clear from the explanation advanced that there
were long periods of inaction for which there is no excuse.
There
does not appear to be any reason why:

The court file was not perused at a much earlier stage
or the registrar was not asked whether the record of proceedings
was filed;

No steps were taken before July 2003 to enforce the
court order obtained in August 2002;

The applicant made no attempt, save to draft an
unsigned affidavit, to have the matter finalised without the record
of proceedings.

As correctly submitted by Mr Orr, there is a limit
beyond which a litigant cannot escape the results of his attorney’s
lack of
diligence or the insufficiency of the explanation tendered.
(See Saloojee and another NNO v Minister of Community Development1965 (2) SA 135 (A) at 140H-141D; Buthelezi & Others v
Eclipse Foundries Ltd 1997 18 ILJ 633 (A) at 638I-639A; Darries
v Sheriff, Magistrate’s Court, Wynberg, and Another 1998 (3)
SA 34 (SCA); Mkhize v First National Bank & Another [1998]
11 BLLR 1141 (LC) at 1144D; Waverley Blankets Ltd v Ndima &
Others; Waverley Blankets Ltd v Sithukuza & Others (1999) 20
ILJ 2564 (LAC); Rustenburg Transitional Local Council v Siele NO
& Others (1999) 20 ILJ 2935 (LC) at 2938E to F and 2939E to
F and Parker v V3 Consulting Engineers (Pty) Ltd (2000) 21
ILJ 1192 (LC).) The applicant’s own actions similarly speak of a
lack of interest. Save for writing one letter to
its attorneys
during the relevant period, it passively sat by. The evidence
strongly suggests that the applicant and its attorneys
were pushed
into action by the respondent’s application to have the award made
an order of court.

Mr Wesley urged the court to have regard to the
respondents’ own supine approach to the litigation over the period
in question.
Whilst a respondent’s own inactivity is a factor
that the court should have regard to, the weight to be given thereto
will depend
on the circumstances of each case and there is surely a
limit to which it would assist a dilatory applicant. The applicant
remains
dominus litis. In the present matter it is not a
case of the respondents having done nothing. A letter was addressed
to the applicant’s attorney
enquiring about the delay in the
prosecution of the matter. When no response was received
application was made to have the award
made an order of court.
Although the respondents could have acted earlier, I am not
convinced that in the circumstances of the
matter their conduct
assist the applicant in making up for its own remissness and the
inadequate explanation therefor.

Besides the duration of the delay and the failure to
adequately explain it, there are two further considerations that
militate against
this Court exercising its discretion in favour of
the applicant. I am not convinced that the applicant’s case
carries any significant
prospects of success or, if the decision of
the arbitrator is set aside, that there is any significant prospect
of anything meaningful
being achieved thereby. I shall first deal
with the prospects of success. In argument Mr Wesley submitted that
the decision of
the arbitrator to impose a sanction of a warning
instead of confirming the applicant’s dismissal of the fourth
respondent was
flawed to the extent that it prevented a fair trial
of the issues and amounted to a gross irregularity. This submission
was based
on three further submissions: Firstly, that the arbitrator
incorrectly made a finding that the charge of misconduct levelled
against
the fourth respondent implicitly included an element of
intentional misconduct. Secondly, that the arbitrator erred in
finding
that the fourth respondent suffered prejudice in preparing
his case insofar as he was not aware that the charge against him
included
an element of dishonesty. Lastly, that the arbitrator
incorrectly set about determining an appropriate sanction.

The first and second submissions can be disposed of
simultaneously. Besides the fact that the first submission appears
to be in
conflict with the applicant’s own case as set out in its
founding affidavit (wherein it was alleged that the arbitrator
should
have found that “…the element of dishonesty is
clearly implied in the nature of the charge …”),
there is in my view no merit in these arguments. In the notice of
the disciplinary enquiry the fourth respondent was charged
with
gross misconduct in that “You as the driver of Company
vehicle BGW670GP on 16 January 2001 failed to issue tickets to three
passengers where they boarded
the vehicle.”
Having regard to the award and the arbitrator’s reasoning, what he
found was that in the absence of an allegation in the
charge of
intentional or fraudulent conduct on the part of the fourth
respondent, the charge “…proved against Grievant can
merely relate to negligent misconduct.” It is
therefore not correct to state that the arbitrator found that the
charge implicitly included an element of dishonesty.
Upon a proper
reading of the award his finding was rather that it would be unfair
to find an employee guilty of misconduct on
the basis that his or
her conduct was dishonest if the said employee was not forewarned in
the charge that reliance would be placed
thereon. That finding
would obviously also have a bearing on the imposition of an
appropriate sanction. Reference in the award
that this would have
caused prejudice to the fourth respondent, must be seen in this
context. Save to extent that the arbitrator
should have enquired
whether the fourth respondent’s conduct amounted to gross
misconduct rather than negligent misconduct, his
reasoning in this
regard, although not the epitome of clarity, cannot be faulted.

In support of the third submission it was argued that
the arbitrator should have had regard to the fourth respondent’s
dishonesty
during the disciplinary hearing and the arbitration
itself. It was also submitted that the arbitrator ought to have
solicited
evidence from the applicant before determining an
appropriate sanction for the misconduct. The obvious difficulty
facing the applicant
is that this ground of review was not raised in
the applicant’s founding affidavit with the result that the
arbitrator was not
given an opportunity to deal therewith. (See
Rustenburg Platinum Mines Ltd v CCMA &
Others [2004] 1 BLLR 34 (LAC) at 38H-I.)
The dishonesty relied upon in this regard relates to the
unacceptable explanation tendered by the fourth respondent
for his
failure to issue tickets to the passengers concerned. Whether this
factor would be enough to conclude that the sanction
is
inappropriate, is an open question. It would simply be one of the
factors to be considered in the assessment of an appropriate
sanction which is a value judgment. The second part of this
submission appears not to be factually correct. There is nothing
in
the award that indicates that the arbitrator denied any of the
parties an opportunity to place evidence before him regarding
the
imposition of a sanction. On the contrary, it is recorded that the
applicant’s assistant depot manager during his testimony
stated
that the applicant “…views such cases very seriously
and does not tolerate such misconduct.” As will
be pointed out when I deal with the issue of rationality, the
arbitrator in his reasons for imposing the sanction considered
the
implications which the fourth respondent’s conduct may have had
for the applicant. In the absence of anything to the contrary,
this
is an indication that the arbitrator recognised and considered the
applicant’s views on the seriousness of the transgression.

A further ground of review relied upon was that the
award is not justifiable in relation to the reasons given therefor.
The arbitrator’s
reasoning in imposing the sanction was as
follows:

“There
is sufficient authority to suggest that negligent misconduct is not
deserving of the ultimate sanction of dismissal, especially
in view
of Grievant’s clean record. However, Grievant’s conduct
(negligent misconduct) certainly has serious implications for
the
Company, which requires a corrective mechanism designed to influence
his errant behaviour, furthermore that he forfeits a portion
of his
income, so that it serves as a deterrent.”

Read with the remainder of the award, what the
arbitrator considered was the following:

The absence of dishonesty in the fourth respondent’s
conduct;

The fourth respondent has a clean disciplinary record;

The serious implications that the fourth respondent’s
conduct held for the applicant’s business;

The fourth respondent should be given an opportunity
to mend his ways; and

The sanction he intended to impose would result in the
fourth respondent forfeiting a portion of his salary.

The legal position with regard to the constitutional
requirement of rationality can be summarised as follows:

Whether the rationality threshold has been met is
determined with reference to whether there is a rational objective
basis on
which, on the basis of the evidence properly before the
administrative decision-maker, the conclusion eventually arrived at
could
be justified. (See Carephone (Pty) Ltd v Marcus NO &
others 1999 (3) SA 304 (LAC) at para [36] to [37]. See further
Country Fair Foods (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & Others (1999) 20 ILJ 1701
(LAC); Pharmaceutical Manufactures Association of SA and
Another: In Re Ex Parte President of the Republic of South Africa
and Others
[2000] ZACC 1; 2000 (2) SA 674 (CC) at paras [85] and [90] and
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp &
Others [2002] 6 BLLR 493 (LAC) at 508H-I.)

Although it requires a value judgment that will entail
a consideration of the merits of the matter in some or other way,
the merits
are not entered in order to substitute the court’s
opinion on the correctness of the decision. Despite the fact that
the scope
of judicial review of administrative action has been
broadened, the fundamental difference between appeal and review
must be
maintained. (See Hamata v Chairperson, Peninsula
Technikon Internal Disciplinary Committee, and Others 2000 (4)
SA 621 (C) at 640G; Derby-Lewis & another v Chairman,
Amnesty Committee of the Truth & Reconciliation Commission, and
others 2001 (3) 1033 (C)at 1066E; Pepcor Retirement
Fund v Financial Services Board [2003] 3 All SA 21 (SCA) at 37
paragraph 48; Bato Star Fishing (Pty) Ltd v The Minister of
Environmental Affairs & Tourism & others [2004] ZACC 15; 2004 (7) BCLR
687 (CC) at 711 paragraph 45.)

In applying the rational connection test, the reasons
should be considered cumulatively rather that separately.
(Ellerine Holdings Ltd v CCMA & others [1999] 7 BLLR 676
(LC) at 681F-682A). As was pointed out by the court in Gray
Security Services (Western Cape) (Pty) Ltd v Cloete NO &
another (2000) 21 ILJ 940 (LC), the odd misconceived finding of
fact or occasional error of law does not necessarily render a
decision
unjustifiable (see Purefresh Foods (Pty) Ltd v Dayal &
another (1999) 20 ILJ 1590 (LC). What is to be determined is
the impact bad reasons have on the rationality of the decision
arrived
at by the decision-maker rather than whether it was right
or wrong. If the same decision could be arrived at upon the basis
of the remaining permissible reasons the decision must stand. The
court must accordingly adopt a flexible approach to the question.
(See Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001)
22 ILJ 1603 (LAC) at paragraph 101; Rustenburg Platinum Mines
Ltd (Rustenburg Section) v CCMA & others [2003] 7 BLLR 676
(LAC) at paragraph 19.)

Although the arbitrator may incorrectly have placed
emphasis on the fourth respondent’s conduct having constituted
negligent misconduct
rather than determining whether it could be
said to have been gross misconduct, I am of the view that this error
cannot be said
to justify a finding that the decision does not meet
the rationality threshold. The arbitrator was quite clearly of the
view that
the sanction imposed by the applicant was unfair because
it was premised on dishonesty. He then assessed what he considered
to
be an appropriate sanction. His reasoning reflects on
application of his mind to this issue and the reasons advanced are
able
to sustain the decision arrived at.

Further, considering the sanction imposed by the
arbitrator, namely that of a final warning with a loss of four
months’ salary,
the question is whether it can be said, in all the
circumstances to be “so out of kilter with what this
Court would have imposed, that it constitutes a gross irregularity.”
(Per Nicholson AJ in Toyota South Africa
Motors (Pty) Ltd v Radebe & others [2000]
3 BLLR 243 (LAC) at 258J.) If not, then there is no guarantee that
anything meaningful could be achieved by a setting aside of the
award.
I am not convinced there will necessarily be a different
result in the sense that either the arbitrator, if the matter is
referred
back to him, or that this Court, would impose a different
sanction.

For the aforegoing reasons I consider that the delay
was unreasonable in the circumstances and that there are no adequate
grounds
for overlooking it.

Turning to the issue of costs, there is no reason to
depart from the general principle that costs ought to follow the
result.